Chambers and Secretary, Department of Social Services (Social services second review)

[2021] AATA 3891

Chambers and Secretary, Department of Social Services (Social services second review) [2021] AATA 3891 (21 October 2021)

Division:GENERAL DIVISION

File Number(s):      2021/0373

Re:Toby Chambers

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member K Millar

Date:21 October 2021

Place:Adelaide

The decision under review is set aside and remitted to the Secretary for reconsideration in accordance with the direction that Mr Chambers meets the qualifying circumstances in s 1218AAA(1) of the Act from  29 July 2019.

…………[Sgnd]………..…….

Senior Member K Millar

CATCHWORDS

SOCIAL SECURITY - disability support pension – suspension of disability support pension – portability – unlimited portability – whether qualified for unlimited portability – decision under review set aside and remitted.

LEGISLATION

Administrative Appeals Tribunal Act 1975
Social Security Act 1991
Social Security (Administration) Act 1999

CASES

Frugtniet v Australian Securities and Investment Commission [2019] HCA 16 (15 May 2019).

REASONS FOR DECISION

Senior Member K Millar

21 October 2021

INTRODUCTION

1. Mr Chambers receives a disability support pension and travels outside of Australia.

2. In general, a person who receives a disability support pension can only be out of Australia for 28 days in the previous 12 months and still receive his or her Centrelink payment.  The amount of time a person can be out of Australia and still receive a payment is referred to as the “portability period” of the payment. 

3. One exception to the general portability rule for disability support pension is where a person who is receiving a disability support pension has a severe impairment, and will continue to have that impairment for the next five years, and the severe impairment would prevent the person doing any work independently of a program of support in the next five years (the “qualifying circumstances”).  A person who meets the qualifying circumstances has unlimited portability. 

4. Mr Chambers sought a determination that he has unlimited portability on 29 July 2019,[1] however a decision was not made on this determination until 17 June 2020, when it was decided he had unlimited portability from this date.[2]

   [1] Exhibit T42, page 180.

   [2] Exhibit T43, pages 227-228.

5. Mr Chambers was out of Australia for more than 28 days in a 12-month period in 2019 – 2020.[3]  As a determination that he could be out of Australia for an unlimited period had not yet been made, his disability support pension was suspended for the period 20 December 2019 to 16 January 2020 as he had exceeded the 28 day period he could be out of Australia in the previous 12 months.

   [3] Mr Chambers was out of Australia on 25 March 2019 to 16 April 2019, 15 August 2019 to 10 September 2019 and 18 December 2019 to 17 January 2020 as shown on Exhibit T41, page 165.

6. On 17 June 2020, a determination was made that he had unlimited portability from this date.[4]

   [4] Exhibit T43, pages 227-228.

7. Mr Chambers applied for internal review of the decision to suspend his disability support pension for the period 20 December 2019 to 16 January 2020, and the decision was affirmed.  The decision was also affirmed by the AAT first review in the Social Services and Child Support Division of this Tribunal (AAT1).

8. Before the hearing, the Secretary conceded Mr Chambers was eligible for unlimited portability from 29 July 2019, and seeks an order that the decision is set aside and remitted for reconsideration in accordance with directions that:

   ·     Mr Chambers satisfied the requirements of s 1218AAA as at the date he sought a determination for unlimited portability (19 July 2019); and

   ·     Subject to Mr Chambers satisfying any other qualification or payability requirements, he is to be granted unlimited portability from 29 July 2019.

9. Mr Chambers sought a hearing of this matter, contending that a decision in his favour was insufficient to address his allegation that the Member hearing the matter at AAT1 had a conflict of interest.  Mr Chambers considers that if this cannot be addressed before the Tribunal, the matter should be referred to the Federal Court.

10. Mr Chambers also submits that because the Secretary conceded he satisfied the requirements of s 1218AAA, the Secretary has changed his position, and Mr Chambers should be allowed to amend what he is seeking as an outcome. Mr Chambers wants to be granted a special category visa (SCV). Mr Chambers sought return of this matter to the Secretary for reconsideration under s 42D of the Administrative Appeals Tribunal Act 1975 (AAT Act) so that a SCV can be considered by the Secretary.

    The decision under review

11. The role of the Tribunal is to stand in the shoes of the decision-maker whose decision is under review to determine for itself on the material before it the decision which can, and which it considers should, be made.  The question before the Tribunal is whether the decision that has been made is the correct and preferable decision.[5] 

    [5] Frugtniet v Australian Securities and Investment Commission [2019] HCA 16 at [14].

12. The role of the Tribunal is to review the decision and not the actions of the decision maker.  As the Tribunal stands in the shoes of the original decision maker, it does not look to whether there is legal error in a previous decision.  It looks at the information before it and applies the law to that information to make the decision afresh.  

13. The decision under review in this case is the decision to suspend Mr Chamber’s disability support pension for the period 20 December 2019 to 17 January 2020.  In making a decision about whether his disability support pension was correctly suspended, it is necessary to look at the period in which he could be out of Australia and still receive his pension.  In the terms of the legislation, this is whether he has a maximum portability period or unlimited portability for the period 20 December 2019 to 17 January 2020. 

    Does Mr Chambers have unlimited portability?

14. Under s 1215(1)(b) of the Social Security Act 1991 (the Act) if a person’s portability period for the payment is not an unlimited period, the person’s payment is not payable after the end of the portability period.

15. The maximum portability period for payments is set out in s 1217(4) of the Act.  In the absence of a determination that Mr Chambers had unlimited portability, his maximum portability period was 28 days (whether consecutive or not) in the previous 12 months.

16. Under s 1218AAA(1) of the Act, the Secretary may make a written determination that a particular person’s maximum portability period is unlimited if the person meets the following circumstances (the qualifying circumstances):

    (a)the person is receiving disability support pension;

    (b)the person’s impairment is a severe impairment within the meaning of s 94(3B) of the Act;

    (c)the person will have that severe impairment for at least the next 5 years; and

    (d)if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of s 94(4)) within the next 5 years.

17. At AAT1, the Tribunal relied on the date of effect of a determination in s 114 of the Social Security (Administration) Act 1999 (Administration Act). This provision applies to “favourable determinations”, which in turn is defined in s 108 of the Administration Act as a determination under ss 78, 85, 85AA or 85A of the Administration Act, and does not apply to a determination under s 1218AAA of the Act.

18. The Secretary concedes, and the Tribunal concurs, that Mr Chambers met the qualifying requirements when he first sought a determination on 29 July 2019 that he had unlimited portability, and that he continues to meet the qualifying circumstances.

19. As a result the decision to suspend his disability support pension is set aside and the matter is remitted to the Secretary for reconsideration in accordance with the direction that the qualifying circumstances in s 1218AAA(1) of the Act were met from 29 July 2019.

20. As other provisions allow for the revocation of a direction that Mr Chambers has unlimited portability (s 1218AAA(3)) if his circumstances change, and portability does not affect the requirement to be qualified for the payment (s 1212D), it is unnecessary to make any further directions. 

    Remittal under s 42D of the AAT Act

21. The Tribunal only has the power to review a decision made on AAT first review  (s 179 of the Social Security Administration Act 1999 (the Administration Act)). If the decision is affirmed, the decision under review is the decision of the original decision maker.

22. The decision under review is the decision to suspend Mr Chambers’ disability support pension, and the Tribunal does not have power to review a decision that has not been made about a SCV. 

23. Mr Chambers sought remittal under s 42D of the AAT Act as he considered this would allow him to seek a SCV visa and return the matter to the Tribunal if he was not satisfied with the outcome. The Tribunal does not have the power to review a decision other than his portability decision until a decision is made and has been reviewed by AAT1, and a further application is made for a review of that decision. Remittal under s 42D would not achieve the outcome Mr Chambers seeks and the Tribunal declines to remit the matter for reconsideration under s 42D of the AAT Act.

    Allegations of conflict of interest

24. Mr Chambers considers the Tribunal should consider his allegation that the decision maker at AAT1 had a conflict of interest. The decision under review is the decision to suspend Mr Chamber’s disability support pension.  Mr Chambers is successful in his application.  While the Tribunal does not agree with the decision of the previous decision maker, this is because it disagrees with the previous decision maker’s interpretation of the law.  The facts are not in dispute.

25. The Tribunal does not review the process by which a previous decision was reached.  This is because it does not review whether the previous decision was lawful, it reviews the decision that was in fact made. The involves making findings of fact afresh and applying the legislation.  If there is any further legal error in the decision, this may be the subject of judicial review.

    Allegations of Bias

26. Mr Chambers alleges that the Tribunal is biased.  It appears this is because it is reviewing a decision made by another member of this Tribunal at AAT1.   This is a function of the legislative scheme and does not provide a basis for a reasonable apprehension of actual bias or a perception of bias.  If the Tribunal were to accept Mr Chambers’ decision, it would be unable to perform its statutory duty to review the decision, and there is no merit in this submission.

    Referral to the Federal Court

27. Mr Chambers seeks referral to the Federal Court on the issue of conflict of interest in AAT1.  The Tribunal considers the issue before it is the suspension of his disability support pension and whether he met the qualifying circumstances for unlimited portability.  It does not consider there is a question of law that requires determination by the Federal Court. 

    CONCLUSION

28. Mr Chambers is successful in his application, as the Tribunal has found his disability support pension was incorrectly suspended because he met the qualifying circumstances from the date he sought unlimited portability of his pension.  This does not address Mr Chamber’s underlying concern about his perception of a conflict of interest at AAT1, and he considers this should be referred to the Federal Court.

29. However, this is a misunderstanding of the role of the Tribunal in reviewing administrative decisions, and of its powers.  The role of the Tribunal is to conduct a review on the merits of the case starting afresh considering the information before it and the legislative provisions.   It is the decision that is reviewed, and not the actions of previous decision makers in reaching the decision.

    DECISION

30. The decision under review is set aside and remitted to the Secretary for reconsideration in accordance with the direction that Mr Chambers meets the qualifying circumstances in section 1218AAA(1) of the Act from 29 July 2019.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for the decision of Senior Member K Millar

.................[Sgnd].............................

Associate

Dated:   21 October 2021

Advocate for the Applicant:	Self-represented
Advocate for the Respondent:	Mr Christopher Murphy, Services Australia